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Bigamy (in Civil Jurisprudence)

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According to the strict meaning, the word should signify the marrying of a second after the death of the first wife, in contradistinction to polygamy, which is having two simultaneous wives. The present usage in criminal law of applying the term bigamy to that which is more strictly called polygamy is, according to Blackstone (Lib. IV, n. 163), a corruption of the true meaning of bigamy.

Canonically viewed, bigamy denotes (a) the condition of a man married to two real or interpretative wives in succession, and as a consequence (b) his unfitness to receive, or exercise after reception, tonsure, minor and sacred orders. This unfitness gives rise to an irregularity which is an impediment impedient and not diriment, hence orders conferred in violation of it are valid but illicit. This irregularity is not a punishment, medicinal nor punitive, as there is no sin nor fault of any kind in a man marrying a second wife after the death of his first, or a third after the death of his second; it is a bar against his receiving or exercising any ecclesiastical order or dignity.

This irregularity is not affixed to bigamy by either the natural or Mosaic law. It has its true origin in the apostolic injunction of St. Paul: "It behoveth, therefore, a bishop to be blameless, the husband of one wife" (1 Timothy 3:2); "Let deacons be the husbands of one wife" (loc. cit., 12) and, ". . . the husband of one wife" (Titus 1:6). By these words the Apostle does not enjoin marriage on bishops and deacons [Sts. Paul, Titus, and Timothy were celibates as were, according to Tertullian ("Monogamy", iv, in "Ante Nicene Fathers", Amer. Edit.) all the Apostles with exception of St. Peter], but he forbids bigamists to be admitted to Sacred orders. Owing to the small number of those who practiced celibacy at the coming of Christ, the Apostles found it impossible to supply celibates for bishops, priests, and deacons and were forced to admit married men to Sacred orders. Blamelessness of life, however, was required, and since iteration of marriage was considered by the Apostles and the people as a strong presumption of incontinency it was decreed that should the bishop-elect (priest- or deacon-elect) be a married man, he must have had only one wife, and further, that after his ordination he should live apart from her. St. Epiphanius (Hær. lxiv, 4) and St. Jerome (Epist. Contra Vigilantium, 1) assert that such was the general custom of the Church. This practice of celibacy before or after ordination was universal in all the Churches of the East as well as of the West until about the year A.D. 700 when in the Synod of Trullo concession was made to Greek priests to cohabit with the wives they had married before ordination. They were forbidden, however, to marry again under penalty of absolute deposition from the ministry. In the Pauline injunction no mention is made of subdeacons or clerics in minor orders, for the simple reason that those orders were not then instituted. The Apostolic Canons (fourth century), which extended the Pauline prohibition to all grades of the sacrament of orders, were not universally observed. Vestiges of a lax discipline on this point are to be met with in France (Council of Orange, c. xxv) and in Spain (Counc. of Toledo, cc. iii and iv). The Church of Rome, on the contrary, strictly followed the Apostolic canons. This is evident from the decrees of the Sovereign Pontiffs Innocent I (401-417), Hilary (461-469), Gregory I (590-604), Celestine III (1191-98), and Innocent III (1198-1216). Gregory IX (1227-41) and Gregory X (1271-76) further decreed that bigamists should be deprived of every clerical privilege and the right to wear the clerical garb and tonsure under penalty of excommunication. The Council of Trent finally forbade bigamists to exercise functions attached to minor orders, even though these functions were, on account of the necessity of the times, allowed to be performed by laymen (Sess. XXIII, c. xvii, de Reform.).

The reason for the existence of this irregularity is twofold: moral and mystical. The moral reason, which was that of the Orientals and some Latin Fathers, is the presumed incontinency on the part of the bigamist and his consequent unfitness to discharge efficiently the office of the priesthood among a people who looked with great suspicion upon a bigamist and held him in little or no esteem. The mystical reason, which was and is the primary reason of the Western Church (it admits the moral reason, but as secondary to the mystical) is the defect in the perfect resemblance of the second marriage to the great type of Christian marriage — the mystical union of Christ with the Church. This union is the union of one husband (Christ) with one spouse (the Church) without spot or blemish. Second marriages destroy the unity of one husband with one virgin wife, and cause a dividing of one flesh with two bodies, instead of cementing the union of two bodies in one, according to Genesis, ii, 24, "They shall be two [one husband, one wife] in one flesh". This division of one body with two, instead of union with one body, is the bed-rock of this irregularity. This defect in the perfect resemblance of the second marriage (real or interpretative) to the great type of marriage gives rise to the irregularity, and to the name by which it is known, "ex defectu sacramenti". It is not proper that one who has received a sacrament defective in its resemblance to its exemplar should become a dispenser of sacraments to others.

In the first centuries there was only one kind of bigamy called true, or real, or proper. A second kind, called interpretative or fictitious, was afterwards added. In the Middle Ages a third kind, called similar, was introduced by the scholastics (Devoti, can. univ., II, p. 206). Durandus was the first to use the term similitudinaria (Specul., pars. I, de dispens. Juxta. n. 6). Since then the traditional division has been and is threefold, viz. real, interpretative, and similar. Many canonists of this century and last hold that similar bigamy should not be included under the irregularity ex bigamia. Another division is made, but there is no unanimity concerning it, i.e. bigamy ex defectu sacramenti (by reason of defective sacrament) and bigamy ex delicto (by reason of guilt). D'Annibale (Summul. Theol., Pars. 1, n. 417 and 418, note 11 fourth edit.) holds that similar bigamists and not a few interpretative bigamists are irregular ex delicto, and not ex defectu sacramenti. St. Alphonsus (lib. VII, de Irregul., n. 436) and very many others, as well as the National Synods of the Syrians (an. 1888, p. 173, edit. 1899) and of the Copts (Cairo, an. 1898, p. 142), class all three kinds of bigamists as irregular ex defectu sacramenti. Bigamy in general is the state of a man who has really or interpretatively contracted and consummated two valid or two invalid marriages, or one valid and the other invalid, or one real, and the other a spiritual, marriage. Two things are essential to every kind of bigamy: (1) a marriage valid or invalid-adulterous connections or concubinage do not enter into the question at all; (2) a carnal knowledge by which the parties legally married become one flesh, and without which there is neither bigamy nor irregularity.

Real bigamy demands two valid and legal and consummated marriages with virgins; therefore, two real wives one after the other. It is indifferent whether or not the marriages took place before or after baptism, or one before and the other after; the second successive marriage imperfectly symbolizes "the great Sacrament of Christ in the Church" (Ephesians 5:32), and the irregularity is present (Pope Innocent I, Decret., can. 13, dist. 34). There is, therefore, no real bigamy (a) if either or both marriages are invalid, (b) if either or both have not been consummated, (c) if either or both women have not been virgins, (d) if one of the two ceremonies was a valid, consummated marriage, and the other a mere betrothal followed by carnal union.

Interpretative bigamy is the state of a man who has not as a matter of fact had two legal wives in succession, but whose matrimonial ventures--whether one or two--are accompanied with such circumstances as to warrant the law by a legal fiction to hold him as a bigamist and irregular. It is to be remembered that the laws which govern fictitious (similar and interpretative) bigamy must be strictly construed, for two reasons: (1) because there is question of an irregularity--something odious; and (2) it is a fiction of law and therefore does not hold unless in those cases expressly mentioned in the law (Fagnanus, cap. In Præsen., n. 23, de Probat.). Pope Benedict XIV wisely remarks (Ad addendum, 15 February, 1753, par. 15), "It is the sole right of the legislator, and beyond the power of any private author or doctor, to draw legal conclusion from a fiction of law. Many, therefore, of the ablest canonists of recent years (v.g. D'Annibale, Gaspari, Icard, Wernz, Lombardi, Ballerini-Palmieri), as also the national synods of the Copts and Syrians, restrict real and interpretative bigamies to the case where a man marries either two valid and legal wives, or a widow, or a corrupt woman, or knows his wife carnally after she has been corrupted by a third party.

Interpretative bigamy is threefold:--

(1) When a man contracts and consummates only one, and that a valid marriage, or weds one wife to whom he is united in one flesh, yet the circumstances are such that the law considers two marriages and two wives. Of this class there are three cases: (a) When a single man marries a widow already made one flesh with a former husband (Decretal Greg., Lib. I, Tit. xxi, Cap. iii). Here the woman has had two husbands and has divided her flesh with two instead of being cemented to only one. Her marriage to the second husband is defective in its resemblance to the marriage symbol--union of Christ with the Church; the second husband is not the only husband of the one wife who herself should have been the wife of only one husband. As the wife in this case has had two real husbands, so, by fiction of law, her husband is considered to have had two interpretative wives. (b) When he marries an unmarried woman, already by a third party corrupted (Pope Hilary, Synod. Rom. Cap. ii, Dist. XXXIV, c. ix, Decret.). Here again is a division of flesh with two instead of union with one, and hence the defect, and, as a consequence, the irregularity. (c) When he carnally knows his own wife after she has committed adultery or has been forcibly oppressed (Decretum, c. xi; c. xii). The husband in this case is not barred from orders unless the adultery of the wife whom he as a layman has married was conclusively proved; nevertheless, in this case, as in cases (a) and (b), ignorance on the part of the husband (sc. of the widowhood or corruption or adultery or rape of his wife) would not except him from bigamy and irregularity, since there is here question of an irregularity ex defectu sacramenti and not ex delicto. The defect is present irrespective of his knowledge.

(2) When he marries once, but the marriage is invalid. (a) The one in Sacred orders who marries a widow-marriage invalid on account of diriment impediment of S. Orders-and is carnally joined to her, is an interpretative bigamist and irregular (Cap. VII, Tit. XXI, De. Big.). Pope Innocent (loc. cit.) says that although this cleric is not a real bigamist, yet with him, as with a real bigamist, it was not lawful to dispense as the husband of a widow, not because of the defect in the sacrament, but on account of the marital intention joined with carnal union. Although not expressed in the above canon, yet it is the common opinion that the cleric in major order who marries a woman corrupted by a third party is a bigamist and irregular. He would not be irregular if We married a woman seduced by himself and known by no other man (Schmalz., Tit. XXI, De Bigam., n. 6). Civil marriage will suffice in this case, even where the Tridentine law is published (S. U. I., December 22, 1880). (b) Invalid by reason of a preexisting marriage bond (ligamen), as, for instance, where the man marries a woman who has been divorced, repudiated, or rejected by a former husband, or who has divorced or left him. In this case the marriage is defective, the woman having shared her body with two, and hence he who married her is irregular for the above-mentioned reason (Lib. 1, Tit. XXI, C. I; Dist. XXXIV, Can. xv). (c) If the marriage was invalid by reason of a diriment impediment other than order and ligamen, the more prominent opinion holds that the irregularity is incurred. Fagnanus (Comment., Cap. iv, De Big., n. 45) asserts that the prelates of the Rota, to whom the case was specially referred by the pope, decided that a cleric in minor orders who contracted and consummated an invalid marriage with a widow was an interpretative bigamist and irregular and stood in need of dispensation, and that Pope Urban, upon the strength of that decision, granted dispensation. Many of the best canonists of today (e.g. D'Annibale and Gaspari) hold the contrary. The case is not expressed in law, they say, and is a legal fiction which at all times is dangerous and is totally unwarranted if the two cases differ in every respect, as do these--the one being in major, and the other in minor orders; the one in bad faith and the other in good faith. Yet, after all is said pro and con, it still remains true that the proximate cause of the irregularity in the law cited is identical with that of the second case, to wit, marital intent with carnal consummation.

(3) When a man marries twice and either or both marriages are invalid, as (a) he who having contracted.
and consummated a marriage with a virgin, upon her death received Sacred orders, and afterwards,
without any deception on his part, contracts and consummates a sacrilegious and invalid marriage with a virgin or widow, becomes an interpretative a virgin and irregular, not because of any defect in the sacrament in the second marriage, which is no marriage and no sacrament, but because of the marital intent followed by consummation by means of which the necessary division of his body with two has been effected (Innocent III, cap. iii, iv, De Big.). Should the cleric feign, rather than honestly intend, the second marriage, in order to accomplish the carnal union, some are of the opinion that he does not incur the irregularity, the marital intent required by the Innocentian law not being verified; others more commonly affirm that irregularity is contracted. The reason given by the affirmants is that the Innocentian marital intent is not so much the intention to contract a valid marriage, as to externally contract and consummate, an intention that is always presumed to be present in such cases. External marriages are always supposed to be free and voluntary. Simulation is never presumed, but must, on the contrary, be demonstrated. (b) Should the first marriage before receiving Sacred orders be invalid on account of any diriment impediment (ve.g., consanguinity or the like), although the case is not expressly stated in the law, the general opinion, with a few exceptions, is that he is an interpretative bigamist and irregular. In answer to their opponents, the affirmants say that the marriage mentioned (Cap. iv, De Big.) may have been invalid, as there is no certainty that it was valid, in which case the argument from one species to another would be legitimate. (c) Should both marriages be invalid, some assert there is no interpretative bigamy or irregularity. Certainly there is no law for it. Others, as St. Alphonsus (Vol. VII, n. 455; Francisco Suárez., Disp. XLIX, Sect. II, n. 11) teach as the most common and notable opinion that there is present the marital intent with the carnal consummation which alone suffices to induce the irregularity. Canonists differ in opinion as to the case where two invalid marriages were contracted and consummated in good faith. The most common and probable opinion is that irregularity is contracted, for the reason that it is not the guilt of the desire, but the intention to contract and consummate the two marriages which is the reason of the irregularity as laid down by Innocent III (Cap. 4, De Big). By almost common consent the irregularity is said to be contracted by the cleric tonsured or in minor orders or layman who, after having contracted and consummated a marriage invalid on account of a known impediment and afterwards, whether his wife be living or dead, contracts and consummates another marriage even with a virgin. There is present in the case a division of flesh and the marital intent necessary to produce irregularity.

Similar Bigamy is nowhere clearly and expressly stated in the law. It owes its existence to the almost universal and constant teaching of canonists and theologians since the time of Durandus. Similar bigamy is twofold: (1) When a religious who has been solemnly professed in a religious order approved by the Church marries a virgin and carnally knows her as such. (2) When a cleric in Sacred orders, in violation of the law of celibacy, contracts and consummates a marriage with a virgin. This form of bigamy presupposes only one carnal marriage and a spiritual marriage, which are interpretatively considered two marriages, and each putative husband is considered
to have two interpretative wives. The carnal marriages are invalid by reason of the diriment impediment of solemn religious profession and of orders respectively; but because of the marital intent followed by carnal consummation, some claim that similar bigamy and irregularity are incurred by reason of the defective signification of the sacrilegious marriage to the symbol of matrimony; some admit that there is no bigamy, but an irregularity arising from the sacrilegious marriage; others again insist that there is an irregularity on account of some kind of a defect in the sacrament, but there is no law declaring it to be bigamous and irregular. Gaspari (De Sacra Ordin., nn. 393 sqq.) and others reject the first opinion altogether and very conclusively show that the canons of common law and the canons of Gratian upon which the first opinion is grounded are not to the point. Gaspari shows that the decrees (Decretales--Lib. IV, Tit. 6, Cap. i, 2 and 4) of Pope Alexander III do not refer to bigamy or irregularity, but speak of suspensions and excommunication; that the Gratian canons treat of religious men and women who have broken their vows and are to be removed from their grade, and subjected to the same penances as were at that period imposed upon bigamists. Pope Clement, in his decree (Lib. 4, Tit. Unicus de Cons. et aff. Clem.) also speaks of excommunication and not irregularity. The constitution of Pius IX, "Apostolicae Sedis" imposes upon similar bigamists excommunication reserved to the ordinaries, and nothing more. It is evident, therefore, that the law affixes no note of irregularity to a so-called similar bigamist. Practically speaking, however, there is little difference, as the so-called similar bigamists are prevented, on account of the censure and the infamy of their act, from receiving higher orders or exercising those already received; and should they solemnly exercise the functions of their grade, they would become irregular on account of the violated censure. The bishop can, when they have put away the woman, done penance, and led edifying lives, absolve them from the censure and dispense them from any irregularity, if any has been incurred, and promote them to higher orders. It is certain, however, that religious, not in Sacred orders, with simple vows, who contract and consummate marriage with a virgin or with a renegade nun who has broken her solemn vows, is neither a bigamist nor irregular. No such case is found in the canon.

Bigamy begets irregularity, the principal effect of which is to entirely exclude from the reception and use and exercise of any ecclesiastical order and benefice attached to any order. Pope Gregory X (Lib. 1, Tit. XII, Cap. Unic. in Sexto) further declared that bigamists should be stripped of every clerical privilege, removed from the protection of the ecclesiastical, and subjected to civil, jurisdiction, deprived of the canon safeguarding their person from personal attack, and forbidden to wear the tonsure and clerical garb, under penalty of excommunication to be incurred at the moment of their attempted marriage. The Council of Trent also forbids to bigamists the exercise of any office or function of minor orders, even of such functions as are usually, by permission, allowed to married laymen on account of scarcity of celibate clerics (Sess. XXIII, C. 17, De Reform). Clerics in minor orders whose marriages were invalid are not comprehended under the Tridentine law. Clerics in Sacred orders and religious clerics, who, by virtue of the law of celibacy and religious profession, are spiritually wedded to the clerical and religious states respectively, are not comprehended under the law stripping them of every clerical privilege, and the use of tonsure and clerical garb, and this out of respect to their sacred character. Clerics on the other hand, in minor orders are not wedded to the clerical state; hence they come under the law. Bishops who knowingly an without permission confer Sacred orders on a bigamist are by the Third Council of Arles (Dist . LV, Can. 2) suspended from saying Mass for one year, and by the decretal law (Lib. 1, Tit. 21, Cap. ii) were deprived of the power of giving to others the orders they had conferred on a bigamist. Since the constitution "Apostolicae Sedis", the only punishment is that which the Holy Father may deem fit to impose upon the bishop violating the canons.

This irregularity is removed neither by baptism nor religious solemn profession, but by dispensation. The pope, and he alone, can dispense with this prohibition to receive orders. He can dispense with a mere ecclesiastical law, such as is the Pauline injunction, although it is of Apostolic origin. Pope Lucius III, whilst urging the unlawfulness of granting a dispensation in face of St. Paul's prohibition, did, however, grant it to Nicholas de Tudeschis, a celebrated canonist, better known as Abbas Panormitanus (Glossa, ad verb. Fiat, C. Lector, XVIII, Dist. XXXIV). Dispensations in cases of one who marries two real wives or a widow are exceedingly difficult to obtain (Lib. I, Tit. 9, De Renunt. Sec. Personae). Worthy of note is the fact that the dispensation does not efface the defect in the sacrament, but the unfitness arising therefrom is removed. It is the universal opinion of today, whatever may have been the opinion of canonists in the past, that the pope alone can dispense all bigamists, real and interpretative, as regards minor as well as Sacred orders, and the collation and use of the simple, as of great, benefices. The reason is evident: bishops cannot dispense in the laws of their superiors, to wit, the pope or General Council. Some canonists claim that bishops, by virtue of the Council of Trent (Sess. XXIV, C. 6, De Ref), can dispense with interpretative bigamy arising from occult guilt. D'Annibale (loc. cit.) on this point well remarks that it is exceedingly difficult for such acts to be private. Sanchez asserts that it is of little moment whether or not the fact is private or
public, since the irregularity is not ex delicto, but ex defectu Sacramenti. It is certain that bishops, where there is a grave and positive doubt about the existence of interpretative bigamy and its consequent irregularity, can grant dispensation. Bishops can dispense with all similar bigamists as above defined after they have left their putative wives, done penance, and led edifying lives, and can admit them to the exercise of all ecclesiastical functions (Lib. IV, Tit. VI, Cap. i, Qui Clerici et Vov.; Lib. III, Tit. III, Cap. Sane 4). Regular prelates, i.e. generals,
provincials, abbots, priors, guardians, having quasi-episcopal jurisdiction, cannot, in virtue of the common law and apart from special privileges, dispense their own subjects with real or
interpretative bigamy, even as regards minor as well as major orders. No such power has been given them by pope or general council. By virtue of privilege of Pius V (Constit. "Rom. Pont. Circumspecta", June 21, 1571, Sec. 3), joined with that of the Council of Trent (Sess. XXIV, Cap. vi, etc.) power to dispense in irregularities on account of occult guilt, given to bishops, was extended to regular prelates. By virtue of the privilege of Sixtus IV, regular prelates cannot dispense with real, interpretative, and public similar bigamists (P. Venantius, 0. F. M., Compend. Privil. Regularium, ed. 1906; Piat, Vol. II, p. 577, 2). As a matter of fact, the Sixtine constitution (Reg. Univ. Eccles., August 31, 1474) makes a special exception in the case of bigamy. The general opinion, that they cannot grant dispensation to their subjects who are real or interpretative bigamists, is evident from the fact that the decretal law (C. Altercationis in 6º) has reserved that faculty to the pope; second, Tridentine law is against such faculty; third, declaration of s. c. c. (3 January, 1589) has so decided; fourth, present practice of granting privileges and faculties to religious orders as a rule makes an exception of bigamy, e.g., constit. of Leo XII, 1826, "Plura Intra", directed to the Society of Jesus, withholds the faculty of dispensing with bigamists. If religious prelates do possess the faculty of dispensing in such cases, it must be by virtue of some special privilege of recent date. Bishops of the United States and of England, and vicars Apostolic subject to the Propaganda (these latter only in foro interno) have special faculties (Formula I, II, and IV respectively) to dispense interpretative bigamists; and in cases of paramount importance, on account of great scarcity of priests, bishops in the United States can dispense also with real bigamists. According to general opinion, the multiplication of marriages does not increase the number of irregularities contracted; so the bigamist and trigamist equally incur only one irregularity. In applications for dispensations mention of only two out of the many marriages is sufficient, and that whether they are all real or interpretative or mixed bigamies. In the opinion, however, of those who divide interpretative bigamies into ex defectu sacramenti and ex delicto bigamies, it is necessary, in the case where a grave sin is the cause of the irregularity, to name both the irregularity ex delicto (with sin) and the irregularity ex defectu sacramenti (without sin).